Knock-and-talk not invalid just because officers hope to get consent to search. They don’t violate the implied license described in Jardines by approaching the front door to talk to defendant in a knock-and-talk. United States v. Wesselhoft, 2016 U.S. Dist. LEXIS 47669 (D.V.I. April 8, 2016):
Ultimately, for an officer to avail himself of the “knock and talk” exception, both his initial entry onto the property and his conduct on the property must be reasonable; that is, his conduct must not objectively indicate that the officer’s purpose was to initiate a warrantless search instead of engaging the inhabitants. See Jardines, 133 S. Ct. at 1417 (an officer’s entry onto the curtilage with a drug-sniffing dog violated the Fourth Amendment because his “behavior objectively reveal[ed] a purpose to conduct a search”); United States v. Coles, 437 F.3d 361, 370 (3d Cir. 2006) (“knock and talk” doctrine did not apply where officers’ conduct of misleading occupants into believing they were not police officers to gain entry into apartment “demonstrated that the police had no intention of merely investigating matters further or perhaps obtaining consent to search”).
. . .
Under the “knock and talk” doctrine, the agents were permitted to enter through the open gate and approach the individuals in the carport. Such conduct would be within the implied invitation granted to any visitor when coming to a house and wishing to speak to the occupants of the property. See Carman v. Carroll, 749 F.3d 192, 198 (3d Cir. 2014), rev’d on other grounds 135 S. Ct. 348, 190 L. Ed. 2d 311 (2014); United States v. Walker, 799 F.3d 1361, 1363-64 (11th Cir. 2015) (approaching carport did not exceed geographic limit of knock and talk exception, and officers had reason to believe that occupant of house was there).
The fact that the agents were investigating a possible marijuana selling operation at the property and wished to talk with the occupant(s) in the hope that they would be allowed to perform a consent search, does not transform their approach up the driveway, through the gate, and into the carport into a Fourth Amendment violation. Indeed, as indicated above, the law permits a “knock and talk” entry for the purpose of obtaining information from an occupant necessary to secure a search warrant or for the purpose of seeking consent to search. See Coles, 437 F.3d at 370 (observing that a permissible purpose for a “knock and talk” is to obtain consent to search); Claus, 458 Fed. Appx. at 188.
Here, the objective reasonableness of Latchman, Elskoe, and Fritz’s entry onto the property and their interaction with Wesselhoft, Barnes, and Raseem, placed their conduct squarely within the scope of the “knock and talk” doctrine. See Jardines, 133 S. Ct. at 1416 n.4 (“The mere purpose of discovering information … in the course of engaging in [the] permitted conduct [of approaching the home in order to speak with the occupant] does not cause it to violate the Fourth Amendment.”); United States v. Holmes, 2014 U.S. Dist. LEXIS 184961, *34, [WL], at *10 (M.D. Fla. Aug. 8, 2014) (detective’s behavior objectively revealed purpose to knock on door and ask questions about complaint of drug dealing at residence with the hope of getting answers or possible consent to search, not to enter his porch and sniff around, look through the windows, or poke around the planters as occurred in Jardines). The Court finds that their conduct was within the parameters of the “knock and talk” doctrine and did not violate Wesselhoft’s Fourth Amendment rights.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)